KHALID ALI Z. QAZI, J. --- The listed application has been filed by the Plaintiff under Order 39, rules' 1, and 2, C.P.C. Read with Sections 52 and 53 of the Specific Relief Act, 1877 seeking a temporary injunction in a mandatory form requiring directions to be given to the Defendants so as to allow the Plaintiff No. 2 to attend classes at the Karachi American School (Defendant No. 1), and to further restrain the Defendants from harassing, interfering, prohibiting or indirectly refraining the said Plaintiff No. 2 from attending classes at the Defendant No. 1, or in any manner interfering with the rights of the Plaintiffs No. 2 as a student of the Defendant No. 1.
2. The brief fact giving rise to the present application are that the PIaintiff No 1 is the father and the Plaintiff. No 3 is the mother of the Plaintiff No 2, who has been a student of the Defendant No. 1, where he was admitted at the age of 4 years in 1995, after having qualified and passed the requisite entrance tests. It is claimed by the Plaintiffs that the Defendant No. 2 was one of the only 4 students of Pakistani nationality who got the admission in 1995. In the next 12 years the Plaintiff No. 2 continuously remained a student of the Defendant No. 1, progressing from kindergarten to the senior year, without any complaint from the school in any manner whatsoever. On 1.8.2007 when the Plaintiff No. 2 completed his 12th year of schooling he received a letter from the Defendant No. 2 (i.e. Peter Pelosi, the Superintendent of the Karachi American School) to the effect that since the said Plaintiff No. 2 had completed 12 years of education in the American education system, he had 2 years remaining before the high school graduation; hence suggestions were made with regards the extra curricular activities which the Plaintiff No. 2 should undertake in order to have a better chance in seeking placement in a good university or college. According to tl-e Plaintiffs, in response to the above-mentioned' letter, they discussed the choice of university and extra- curricular activities, however,. All of a sudden and without any show-cause notice or reason the Plaintiff received a letter dated 13.3.2008 in which for the first time it was mentioned that the Plaintiff No. 2 would not be invited back for the next academic year. The. Only reason divulged in this letter for the expulsion of the Plaintiff No. 2 has been the apparent review conducted by the teachers of the Defendant No. 1 in respect of the academic record of the Plaintiff No. 2. The Plaintiffs claim that in the aftermath of the letter dated 13.3.2008 they met the Defendant No. 2 who informed them that the Plaintiff No. 2 was failing in English, which was the reason for not permitting his return to the school. It is claimed by the Plaintiffs that upon their insistence the Defendant No. 2 promised that if the Plaintiff No. 2 undertook and successfully passed two recommended classes in the summer school programme of 2008 at the American School in England; the said Plaintiff No. 2 would be permitted to continue his education at the Defendant No. 1 and graduate from there. It seems that the Plaintiff No. 2 was admitted it the American School in England where he successfully cleared the summer classes of 2008 securing 2As B+ and. B; also the said Plaintiff No. 2 received complementary reports from the dormitory residents who stated as follows:-- "Omar has been a pleasure to have, and he had shown great signs of leadership and skills."
The Plaintiffs claim that notwithstanding a successful completion of the summer school, which was in fact suggested by the Defendants, The Plaintiff No. 2 was not admitted back for the 2008-2009 session, hence the present suit.
3. Mr. Abdul Hafeez Pirzada, the learned counsel for the Plaintiff, has assailed the expulsion of the Plaintiff No. 2 on the following grounds:---
(a) the expulsion of the Plaintiff No. 2 is without any show-cause notice, warning or caution and bereft of any reasons. As such the impugned action is against the principles of natural justice;
(b) the school authorities i.e. The. Defendants have acted unreasonably, unjustly and unfairly. The entire action is very harsh and one-sided;
(c) the impugned action militates against the fundamental rights of life and education. Violation of Articles 4, 5(2), 9 and 14(1) of the Constitution is stressed;
(d) according to Mr. Pirzada the school authorities have acted in a most imperious, arrogant and harsh manner since despite various requests by the plaintiff so also the letter written by the counsel for thePlaintiffs dated 22.8.2008, the Deferdants have not even bothered to meet the Plaintiffs thus confirming that they are really not bothered or pushed about the, future and career of a teenager i.e. The Plaintiff No. 2;
(e) the attitude of the. Defendants has caused grave mental shock, trauma and anguish to the Plaintiffs, while stigma has been attached to the Plaintiff No. 2;
(f) the Plaintiff No', 2 , since inception has only studied in the Defendant No. 1, which prescribes the American system of education. Thus; he can really not seek admission in any other institution in Karachi because the Defendant No, 1 is the only institution which runs on the American methodology of imparting school education;
(g) the Plaintiffs have complied with the requirements of the Defendants as the Plaintiff No. 2 went to the American School in England for the summer course in 2008, where he performed satisfactorily The failure of the Defendants to remove the expulsion of the Plaintiff No. 2 despite him having satisfied the fresh requirements prescribed by the Defendants, is not only in breach of contract/promise but the same is also against the right of the Plaintiff No. 2 found in legitimate expectations;
(h) in the letter dated 1.8.2007 the Plaintiffs were let .To believe that. All was in older as suggestions were made therein to adopt a better set of extra curricular activities so as to facilitate admission- and placement of the Plaintiff No. 2 in a better university/college This confirms the defendants ha o issue with' the Plaintiff No 2 completing the high {{Print miss at PDF}} schooling at the Defendant of a sudden what ranspir=, (a so as to expel the P\e,- inexplicable but it also smacks of the fact and law of the Defendants:
(i) the Plaintiffs have paid a very high le to the Defendants, which in terms of r s social and economic parameters run, astronomical figures. Therefore, having spe I 3 colossal figure, the Defendants could not have arbitrarily relieved the Plaintiff No. 2. At best they could have directed the Plaintiff No. 2 to have repeated certain classes at the Defendant No. 1;
(j) in support of his contentions Mr. Hafeez Peerzada has placed reliance on Arif Majeed Malik v.
Board of Governors Karachi Grammar School 2004 CLC 1029 and Goss v. Lopez, 419. US 565 (1975) decided by the US Supreme Court.
4. In response Ms. Sana Minhas, the learned counsel for the defendants has argued as follows:---
(a) the plaintiff No. 2 is still a 10th grader as he has not cleared English-10;
(b) all along there has been a problem with the IQ and retention power of the plaintiff No. 2 which can be perceived from the psycho educational assessment of the plaintiff No, 2;
(c) all along the plaintiffs were duly informed of the unsatisfactory plaintiff No. 2 which can be seen from the letters written by the defendants dated 30.5.2003, 15.3.2004, 14.2.2005, 1.4.2005, 31.5.2005, 4.10.2007, 13.3.2008 and 9.5.2008. Reference was also invited to the performance reports and bi- weekly progress reports for{{Print miss at PDF}} grades 9 and 10 in respect of the plaintiff No. 2 which confirmed his miserable performance. All along the plaintiff No. 2 was given opportunities to shape up but all without any success;
(d) in 2007 the plaintiff No. 2 was suggested to undergo the summer school, so as to improve his English, which in turn could have facilitated the plaintiff No. 2 taking English-11 alongwith repeating English-10. However, the plaintiff No. 2 did not take up the advice and no summer school was attended in 2007;
(e) all parents so also the students are required to read the Student Handbook and sign-off a page attesting that they have read the said Handbook. Thus it is incorrect to suggest that the plaintiffs were not aware of the conditions prescribed in the Handbook according to which if the candidate were to fail a subject for a second time the same would preclude him for taking the said subject for a third time, and in that event the candidate would, also not be put on a probation. In this case the plaintiff No. 2 had failed the English-10 for the second time which resulted in the defendants taking the impugned action, which was strictly in accordance with the law and rules. The plaintiff No. 2 was also in the past put on a probation which he miserably failed. The plaintiff No. 2 also failed in English-11;
(f) the defendants did not agree to the plaintiff No. 2 attending the summer school in 2008, which was attended by the plaintiff No. 2 at his own volition. If the summer school had been attended upon the requirements of the defendants, there would have been a written document to such an effect certifying the defendants ' approval,. According to the defendants, they had only told the plaintiff No. 2 to attend the summer school of 2008 as a preparation for the new school and not as a condition for returning back to the defendant No. 1. If the defendants had agreed for the plaintiff No. 2 to have attended the summer school for 2008, then they would have also approved the courses, which the plaintiff No. 2 would have undertaken, which was not the case. The plaintiff No. 2 in the summer school of 2008 took two Basic level English courses one of which was for foreign language learners, in addition to photography, and media studies. Even in the two Basic English courses he was unable to achieve "A" grades whereas the English- 10 and English-11 courses were of much higher standards than the basic English courses taken up by the plaintiff No. 2 in the summer of 2008 at the American School in England on his own volition;
(g) the plaintiff No. 2 had completed only 15.5 credits whereas 10.5 credits were remaining which would have required more than two years to graduate;
(h) the allegations that the defendants had violated the law and constitution were expressly denied by the defendants who maintained that the candidates had " to strictly adhere to the prescribed school policy, which was necessary to maintain a high standard of education for which the defendant No 1 is well-known for It s further submitted that the which the defendants had every respect for the law of the land and at no point of time they have acted in violation thereof; on the touchstone of natural justice, it was submitted that all along the plaintiffs were kept informed with detailed correspondences and reasons. Therefore, the impugned action could not be attributed to have been taken in violation of the principles of natural justice, lacking any reasons, rationality and reasonableness;
(j) it was further stated that the suit was hit by !Aches and the plaintiff No. 2 had no vested right to continue with the admission or studies. In this regard reliance was placed on Ardeshir 'Cowasjee v.
CCB 1998 MLD 1818, Arts Council of Pakistan v. Riazuddin Prizada PLD 1969 Karachi 349, Naima Rana v. S.M. Maroof 1989 MLD 1317,- Humayun Nizami v. Government of Sindh PLD 1989 Karachi 343;
(k) the High Court had no jurisdiction to interfere in matters of educational assessment and the judgment of the academic board in respect of students' performance being unsatisfactory could not be questioned. In this regard reliance was placed on Chairman Board of Intermediate v. A.I Mir 1984 SCMR 433 and Jawaharlal Nehru University v. B.S. Narwal AIR 1980 SC 1666;
(I) it was further stated that if a limited number of attempts were prescribed, no further attempts could be given to a student if he had failed to clear the examinations in the prescribed number of attempts. In this regard reliance was placed on Omer Nassar Muhammad v. Principal, Nishtar Medical College 2006 SCMR 695, A.I Yousuf v. Chairman of Academic Council 2000 SCMR 1222 I-Amaria Masooma Zainab v. Principal, Allama lqbal Medical College PLD 2006 Lahore 500;
(m) students are bound by rules and regulations of educational institutions and Courts are to refrain from interfering with such rules/regulations and with the discretion of the institutions. In this regard reliance was placed on Arif Majeed Malik v. Board of Governors Karachi Grammar School 2004 CLC 1029, Muhammad Faisal Haseeb Khan Balogh v.
Vice-Chancellor, Bahauddin Zakanya University 2006 YLR 413, Muhammad Ilyas v. Bahauddin Zakariya University 2005 SCMR 961, Awais Javed v. Principal, Punjab Medical College 2008 CLC 1449;
(n) according to the learned counsel for the defendants, the rules of natural justice are to be catered according to the circumstances. In this regard reliance is placed on Beenish Abbasi v.
Province of Sindh PLD 2003 Karachi 487, Rukhsana Soomro v. Board of Intermediate & Secondary Education, Larkana 2000 MLD 145 and The. Chairman, Board of Mining Examination v. Ramjee AR 1977 SC 965;
(o) lastly, it was contended that mere allegations of bias are not enough. The same are required to be substantiated through concrete evidence. Reliance was placed on Azhar. Alt v. Punjab Public Service Commission PLD 2004 SC 4 and Hussain Aamer v. Tehsil Municipal Officer, Narowal 2004 PLC (CS) 486.
5. Ebuttal Mr. Hafeez Pirzada has contended as follows:-
(a) the Plaintiff No. 2 never failed in English-11 as he only joined the English-11 class after 14.9.2007 and was withdrawn from the class by or before 4.10.2007;
(b) reference was invited to an assessment letter given by the Stanford Institution, according to which the Plaintiff No. 2's writing performance was above average;
(c) the reports filed by the Defendant No. 2 are out-dated, irrelevant and not all of his teachers had been consulted;
(d) pages 121, 125, 131 and 141 to the counter- affidavit confirmed that the Plaintiff No. 2 had been getting a passing grade in English-10;
(e) it is a settled practice of the Defendant No. 1 to count the credits of the summer school. If the Defendants were agreeable to the Plaintiff No. 2 going to the summer school in 2007, there was no decision to exclude the credits of the summer school of 2008.
6. I have heard the rival arguments, perused the record and law on the subject.
7. At one point of time there was a doubt in respect of maintainability of suit filed against private schools/institutions. The controversy has been set at rest by a Division Bench of his Hon'ble Court in the case of Arif Majeed Malik v. Board of Governors, Karachi Grammer School 2004 CLC 1029 wherein it has been held that not only a suit would be maintainable against a private school but the Court is also competent to grant an injunction there-against. It was further held in this case that although -a private school is not a government department, it exercises a public duty cast upon it to impart- proper education to the students. And this public duty is required to be exercised justly, fairly and honestly, irrespective of any strict legal rights existing in favour of the students. In the latter case the children were expelled from the school on account of a dispute between the parents and the school authorities. It was held that for the mis-doings of the parents the children could not be penalized. For the specific allegations, which were levelled against the children, it was held that a proper opportunity of being heard was required. The case of Arif Majeed Malik was - followed by a learned Single Judge in Kashif Anwar v. Agha Khan University 2006 CLC 1621 wherein interim injunction was granted, inter alia, on grounds that the expulsion of a student on account of disciplinary matters could not be effected without a proper opportunity of hearing.
8. There is no dispute about the fact that Plaintiff's suit is maintainable but the instant case does not touch upon any disciplinary proceedings against the Plaintiff No 2 as was the situations in the two precedented cases 'mentioned in, para 7 above. In case there were allegations against the Plaintiff No 2 touching upon a disciplinary matter, the same would of have required a proper hearing in keeping with the requirements of natural justice. The matter at hand is quite distinct This is a case where the Plaintiff No 2 i.e. The student has not been able to clear a discipline within the permitted attempts as per the school rules contained in the Students' Handbook. I have been able to place my hands on a judgment reported as Zubair Azam v. Pakistan Medical and Dental Council 2005 YLR 1462 wherein a learned Single Judge of the Lahore High Court was pleased to dismiss a petition when the Petitioner/candidate was unable to clear the relevant paper in the three prescribed attempts. The expulsion of the candidate on this count was upheld. To similar effect is the judgment of the Supreme Court reported as Omer Nassar Muhammad- v. Principal, Nashtar Medical College 2006 SCMR 695. In this case the Hon'ble Court had to deal with a situation, when a candidate was unable to clear the first professional examination of M.B.B.S. In the four permitted attempts . As a consequence the candidate was expelled from the Medical College, Which order was upheld by the apex Court.
9. From the record it is rather clear that the Plaintiff No. 2 was unable to clear the English-10 examination in prescribed .2 attempts. In this regard reference is invited to the plaint which contained the mark sheets dated 27.5.2008 and 30.5.2008. It is not denied by the Plaintiffs that as per the Students Handbook the permitted number of chances for the subject in question were two.
An attempt has been made in the rejoinder to refer to pages 121, 125, 131 and 141 of the counter- affidavit to show that the Plaintiff No. 2 was getting a passing grade in English-10. A perusal of the afore-mentioned pages would confirm that these were progress reports dated 17.11.2006, 29.9.2006 and 8.9.2006. At page 141 is the result for English 9 as at 14.10.2005 and not English-10. In fact the reports attached -alongwith the plaint and mentioned above are of May 2008, which confirm that in the final grading the Plaintiff No. 2 was unable to clear English-10 in two attempts. It comes as a surprise that the medium of instruction of the Defendant No. 1 throughout has been in the English Language and that too at par with the prevalent American standards; but still the Plaintiff No. 2 failed in English: Whether the failure of the Plaintiff No. 2 was attributable to his own inadequacy or the teaching methodology is yet another matter. However, the facts sifted from the record comply confirm that the Plaintiff No. 2 was unable to clear the English-10 discipline despite having availed two attempts.
10. The averment on behalf of the Plaintiffs that upon the representation of the Defendants the Plaintiff No. 2 undertook the Summer School in England in 2008 and hence the Defendants cannot be permitted to resile from their promise to accommodate the Plaintiff No. 2 after the summer school does not seem proper. It seems that before the Defendant No. 1 approves a Candidate to undertake Summer School, it issues the requisite form and also prescribes the subjects which are to be, part of the curriculum in the Summer School. However, in this case no such approval was accorded and in fact the courses undertaken by the Plaintiff No. 2 in the Summer School of 2008 at the American School in England were not at par with the requisite courses of English 10. The courses undertaken by the Plaintiff No. 2 at the American School in England were in -respect of media studies, photography and basic English courses, one of which was prescribed for foreign learners. It seems that the English-10 course is meant for advanced learners. Even in the basic English courses at the Summer School the Plaintiff No. 2 was unable to get A grades. Indeed, the school authorities had advised the Plaintiff No. 2 to have attended an appropriate set of courses in the Summer School of 2007, however, the same was not availed by the said Plaintiff No,
2. Be that as it may, the ground reality seems to be that the Summer School of 2008 undergone by the Plaintiff No 2 was neither approved by the Defendants nor the courses offered were commensurate with the standard of English-10. A great emphasis has been placed by Mr: Hafeez Pirzada on the case of the US Supreme Court in Goss v Lopez, 419 US 565 (1975). This case from the US is distinguishable since it is applicable to public schools for which the due process clause entrenched in the 14th Amendment of the US Constitution is fully applicable, according to which the student is to be given due opportunity alongwith parents before being expelled. I am afraid the Defendant No. 1 is not a public school.
11. The argument of the Plaintiffs on the general principle of natural justice is also of, no consequence, Where a specific allegation is made, which touches upon disciplinary issues the paradigms of natural justice fall on a much higher pedestal than in some other case, since the case of the former the misconduct of the candidate is required Ito be determined. In Benish Abbasi v. Province of Sindh PLD 2003 karachi 487 and Rukhsana Soomro v.
Board of Intermediate and Secondary Education 2000 MLD 145 it was held that the strict contours of the principles of natural justice may not be applicable to educational institutions. It was also observed in the latter case that the right of hearing was not an absolute right. I have been able to law my hands on the excerpt from "Administrative Law" by Sir William Wade, 6th Edition page 524, wherein the following has been observed:--- "But it is now clearly settled, as is indeed self-evident, that there is no difference between natural justice and 'acting fairly', but that they are alternative names for a single but flexible doctrine whose content may vary according to the nature of the power and the circumstances of the case."
13. In light of the above discussion I am not inclined to grant the application as prayed, seeking a mandatory injunction to permit the Plaintiff No. 2 to attend school. Having said so I am also mindful of the fact that the ceiling of the number of attempts to pass examinations in the present case is not found on any statutory dispensation. The cases of Zubair Azam (2005 YLR 1462) and Omer Nasar Muhammad (2006 SCMR 695) discussed above, would not apply with the same rigour to the present controversy because those cases and the other cases relied upon by the learned counsel for the Defendants pertain to higher studies/professional qualifications and in some of them the statutory rules had prescribed for the maximum number of attempts. I am afraid here we are dealing with the case of a school -going teenager and despite the drive to maintain a very high standard of excellence, what cannot be lost sight of is the fact that the Karachi American School is the only school which the Plaintiff No. 2 has attended since childhood and that shifting from an American System of Schooling to a British or Pakistani system (which are the available alternatives in Karachi) would be quite difficult. Therefore, the school requirements in respect of the maximum number of attempts for a particular discipline is to be viewed with some laxity. Again the school authorities cannot be completely absolved of their duty to have imparted adequate guidance in the shape of special and extra classes so as to have equipped the candidate with the necessary knowledge and expertise; and that too in the discipline of English which is perceived to be a strong-hold for a reckoned American school of the country. But then the Court would indeed be reluctant to slap the school with a non-performing candidate, especially keeping in view .That this is a school reckoned for its high standards. A balance is required to struck on the peculiar facts of this case..
14. Truly even where the facts and circumstances do not fall within the four corners of Order 39, rules 1 and 2, C.P.C., the Court has ample power to grant injunction under Section 151, C.P.C. (see.
Selman Javed v. S.M. Arshad PLD 1983 Karachi 303, Balagam Wala Oil Mills (Pvt.)_ Ltd. v. Shakarchi Trading A:G. PLD 1990 Karachi 1 and Agha Saifuddin Khan v. Pak-Suzuki Motors Co. Ltd. 1997 CLC 302).
15. Having regard to all the facts and circumstances of the case the application is disposed of in the manner that the Defendants shall permit the Plaintiff No. 2 to retake in May 2009 English-10 and other examinations, if any, for grade 10, which he may have earlier flunked. In case the Plaintiff No. 2 is able to perform satisfactorily as per the review of the school authorities, he, may be 'accommodated in grade 11 in the next year. Of course if the Plaintiff No. 2 is not able to perform that would C.L.R. be the end of the matter. Indeed the course as suggested above might result in the Plaintiff No. 2 graduating at an age little higher than that permissible under the Student Handbook/school rules, but, as already discussed above, the Student Handbook or school rules are not statutory in nature and in the facts and circumstances discussed above this appears to be a just and fair arrangement for the time being. Doubtlessly the Court has ample power to mould relief according to the facts and circumstances of the case (see Amina Begum v. Ghulam Dastgir PLD 1978 SC 220).
16. Before parting it is needless to stress that the observations mentioned above are tentative in nature. .